*1 JANUARY TERM, v. State 30 N. M. Jackson, 12. assignment The last by made contrary the verdict was to the contrary law and to the evidence. It is a conclusion from the other as- signments, and, presents as it no new matters, there nothing to be considered. carefully
We have points considered all presented appellant. We have reviewed the entire record and find no error. The of the lower court will affirmed; therefore be and it is so ordered.
PARKER, J.,C. and BOTTS, J., concur. 2829. Dec. 1924. Modify Motion to
[No.
Denied March 1925.] BENDERACH GRUJICICH et al. BY
SYLLABUS THE COURT 1. .prosecution Counsel of an action for mali- prosecution cious are not allowable. 2. In an action prosecution, malicious tried jury, court without where shows plaintiff paid attorneys represent him in the court $25 to defend dis- charge trict court in a felony contested case before jury, allow an' element without of the value of the services rendered. to a conspiracy maliciously prosecute Evidence examined, HELD to be to support sud.’icient although entirely conclusive. Where is affirmed in principle, the mere recovery denied, fact item of accordingly, discharge does not modified the sureties supersedeas bond. Appeal Court, County; Leib, from District Colfax Judge. against Grujicich
Action Benderach Marko Dick Judgment plaintiff, others. and defendants appeal. Modified, and as so modified affirmed.
Crampton, Phillips Darden, & Raton, appel- lants. Raton, Wilson, appellee.
L. S. MEXICO OF NEW
SUPREME COURT G-rujicic'li 30 N. THE COURT OPINION OF malicious an action for This is C. J. PARKER. jury, result the court prosecution, tried to *2 an has $850, from ing judgment in a for defaulted were first appellants taken. The been rendered for judgment parte, and proofs taken ex by appel $200, expenses incurred up of $750, made prosecution, in the criminal defending himself lee ap opened, damages. default was $550 case was answer, and the pellants were allowed by At close of again the court. tried judge announced: must render gentlemen, is that apparent, “It just judgment a matter matter left .plaintiff and the for the in the ex- I heard the evidence At the time amount. of the judgment $750, plaintiff I rendered parte I am still then expense since to considerrble has been going to render I am opinion. $850 case.” in this crease [1] I. Counsel $750 urge that $850 was for in and cannot of this case prosecution expenses dispute this appellee does not Counsel be allowed. appear, it argues that does legal proposition, expenses incurred in was for increase $100 see, in view this case- "We do not prosecution of announcement, how it can be doubted of the court’s purpose, and we de for this this increase was erroneous, termmine that was. extent. therefore, to this pellee fense of the criminal case is 2. Counsel attorneys’ argues erroneous, the allowance to expenses because no evi in de ap dence was submitted to establish the reasonableness of charges. question doubt whether the We raised complaint alleged saved the court below. The money expenditure the defense of criminal case. The answer simply general contains allegation complaint. denial The issue money was whether the had expended by JANUARY TERM, Grujicio'h- ¡N. appellee. expenditure of tbe Tbe was submitted objection. Tbe court found expendi- tbe by appellee tures for counsel fees and expenses, all itemized, necessarily bad been made in tbe defense tbe criminal case in Up $195. tbe sum of to tbis time question bad been made that tbe reasonableness of tbe bad shown, question not been tbe by exception first raised finding, to tbe tbe was closed and tbe case submitted. Under circumstances, question we doubt is be- us. question fore Tbe time to raise ap- tbe was when pellants pleaded complaint, to tbe and could then by have been demurrer, by raised or objection when tbe evidence or offered, motion to strike it out ground on tbe it bad supplemented not been proof of tbe expenditures- reasonableness of tbe Had either of these taken, courses been would tbe have been a position to have offered on the subject, and tbe court *3 position would have in a passed upon question to have tbe of whether tbe rea- sonableness of tbe should be shown and was, fact, whether it in shown. us,
Assuming, however, question that tbe is before prevail. do not see bow can appears It we opinion from tbe in tbe court tbis record that be presided at tbe trial of tbe criminal thereby, case. He judge acquired court, knowledge as of tbe of tbe fact money attorneys, paid tbe to whom tbe appellee, in appears defended him trial. It in evidence in appellee paid attorneys tbis case that bis defending him $160 for in tbe criminal case before tbe court, felony district which was indictment a jury. a Assuming, contested case before a deciding, judge might bring not that tbe into tbis acquired knowledge tbe presiding case tbe judge in tbe criminal trial, proof we still tbe have paid attorneys before bis $160 to de- him, paid fend required $9.50 for various bonds ’ him, expended taxi going $3 hire in courts, and from making tbe in $172.50, thus ac- counting total $195, except tbe allowance of tbe OP NEW MEXICO
r.34 COURT Grujicic'h, al, 30 N. M. is a probably This latter sum $22.50. sum of of the attorneys’ in the court paid the knowl- judge had no of the of which the appellee had the the edge than further argue vigorously paid it. Counsel for evidence, court, power allow, without has while it case then attorneys’ rendered in the fees for services allow them for power has to so no before n case, without another performed services is service, This and its value. of the character of ordinary at far probably least so true But case character services concerned. place, it was tried is rather unusual. the first jury trials, there jury. In case of court without services, and must be of the character reasonable, same, because proof of the value jury standard, proof, with which has damages. But value an element of to measure the kind, tried to court as a case of this prosecution was, and the what shown attorneys took, proof that de- course it the mere appellee is a sufficient characterization of fended the Every lawyer mere knows that em- services. attorneys standing good to de- ployment of two felony, regardless charged fend a man with conducting his defense of work amount jury, $160. is worth more than Of before out, covering long drawn where the service items, and where the allowance multitude and extent of ser- large, evidence of the character required, ought, perhaps, to be ex- and its value vice eye performed under the cept where the service is But statement of court. not so where mere proves its value up of services amount fact *4 in in allowance, of as both as to the the fee justice’s court and the district court- Counsel for the payment appellants admit that evi- services, of the value of the claimed dence they deny application the appellee; but counsel for principle in because character this case the they in er- the service is shown. TERM, JANUARY 335 G-rujieic'ii- Benderacli 30 N. M. 331 ror, seen, as before because the fact suf- of service Upon ficiently subject shows its character. the payment being value; some evidence of see Carnego Iowa, Co., v. Crescent Coal 1916D, N. W. Ann. Cas. 794 and note. We do not commit court proposition, merely apply on this in principle view of the admission in briefs. doWe not desire to be departing understood any of the principles regard well-established power of the court in matters of We this kind. simply hold that this is exceptional character, case and that there was no error on the court allowing under the circumstances in as an #195 element of in the case. tried, upon complaint theory framed, the criminal prose appellee cution of the was the a conspiracy result of appellants. between all of theory ap pellee appellants was that all conspired three of the him, assault assault was effectuated one appellants; present, aiding the others abetting theory was, further, ap him. The pellants, falsely assault, conspired prose deadly cute for the crime of assault with weapon, alleged by appellee to have been committed controversy. during first suf There doubtless conspiracy ficient to establish the assault appellee. Appellants present were at the home of appellee, in, any dropping one at a time, apparent reason, participating assault, according appellee’s con evidence. The evidence of spiracy maliciously falsely prosecute ap- pellee quite so clear- All appellants left three together ap- automobile after the assault pellee. appellants, day, One of the made complaint in the criminal case before the justice, and all testified before the three and afterwards before to the as the district deadly weapon, falsely sault with a found. testify Just how the two came the two they courts, brought whether or volunteered were *5 COURT OP NEW MEXICO Grujicic'h. al, et 30 N. Benderacli They appear. are not shown process, does not prose- counseled or abetted the institution have design participated common cution, or have same, by any carry direct evidence. Of forward the conspiracy direct; need be evidence of not being susceptible proof circumstantially. and saw and heard witnesses appellants partici- that all three became convinced pated com- design purpose, in the and common thereof, pre- mitted acts in and we not futherance say pared support his that there was no evidence conclusions, although, stated, above subject. might clear as it be foregoing judg- It follows all of the from $100, be ment excessive sum of should extent, and, modified, modified to that as so should be affirmed, and the cause remanded with directions so modify same, it is ordered. so FORT, JJ.,
BOTTS and concur. Modify Judgment. On Motion A PARKER, J. a modification of C. It this court has been filed. is found- judg- that, as we modified the proposition ed recovery denying item of to the extent of one ment judgment as $100, and affirmed the in the sum of thereby supersedeas bond modified, the sureties on the remaining discharged payment became judgment. (section portion of The statute 1917) chapter 43, provides for bond condi- Laws all judgment, and payment "for of such tioned adjudged against be in case the costs that judg- appeal of error be dismissed or the or writ be affirmed.” ment or decision of the district court given if the bond in this ease is conditioned that prosecute appeal "shall their said with diligence supreme due court of state Mexico, and, New or decision of dismissed, affirmed, court below be or the pay comply shall with decree district pay etc. costs,” said TERM, 1925 _JANUARY Grujicic'h. 30 N. 331M. Hopkins, Counsel cites the 3 N. M. ease of Orr v. (Gild.) 183, supporting 3 P. contention that the sureties are discharged; but we do find support ease to his contention. That awas ease where an excessive amount of interest had allowed, *6 the court a remittitur of the interest, excess and judgment affirmed the as thus modified. The court held that judg affirmance of the ment, and that appeal sureties on the bond were discharged. This ease was decided under statutes substantially like, if not identical present our with, statute. There is a opinion statement in the to the effect if appeal had been taken to correct charge, erroneous interest might different conclusion have been merely reached. But this suggestion, and not decision. decision was judgment was an judgment affirmance of the be low, and we fail to see the distinction whether counsel found error, and relied or whether the court it, found and of its compelled own motion the remit titur. This case went Supreme Court of the States, United reported Hopkins Orr, v. 124 510, U. 590, S. 8 S. Ct. 31 L. Ed. and was af saying: that court firmed, . judgmyent “The of the district court was with affirmed meaning appeal of the territorial statutes and of the bond.”
See, also, “Appeal 4 J. Error,” C. 3361- §§ See, note to Milling Howell Alma also, Co. (36 126) Neb. N. W. 38 Am. Rep. 694, St. subject where vast number of cases on this are col lected. We are aware of the general doctrine that law,
sureties are favored in obligation, and their juris, is strietissimi not be im extended plication. But susceptible misap this doctrine is plication, injustice. resulting surety is the suspension appellee’s right to enforce time, at a often, when it could be en slightest forced. If the modification of the COURT OP MEXICO 338' NEW Grujicich. M. al, 30 -N. surety, then discharge is to deemed be protec affords supersedeas bond giving of hand, appellee in most cases. On the tion to the other be the district court affirmed affirmed within the principle, it should be held ' notwithstanding meaning bond, of the statute way, slight ends modification. bond, promoted, purposes are accomplished. parties, See the intention of the Error,” “Appeal Of C. J. § surety must obligation of not be extended to some thing undertaking, "and other different from his case here. foregoing
It follows from the denied, modify our should be and it is so ordered. WATSON, JJ.,
BICKLEY and concur.
(No. 1925.) 17, Feb. 2951. al. MICHELIN TIRE CO. v. AKERS et BY SYLLABUS THE COURT A to bill he sus- exceptions strike of should .1. presented it appears tained where certificate judge signature presence recited both judge of and due notice struck out counsel, presence recital of of and it counsel, admitted recital of notice true. bring responsibility up cor- judge’s duty rect is his cer- transcript, and it see that exceptions correctly to the bill facts tificate of recites regarding presence counsel and notice settlement. 3. On certorari petition diminution record judge’s excep- for correction certificate to the bill of settlement, tions it appeared to show waiver of notice judge signature appellant reciting tendered certificate jiresence both the of and notice both due to appellee, showing HELD, recitals untrue. special apply for account failure satisfactorily filing brief, days apiiellant’s within writ c. Laws section 4. On for certorari for diminuition of the record petition clerk, by approval bond, appears cost show